J-S70027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ADMIRAL PERRY

Appellant No. 1160 EDA 2014

Appeal from the PCRA Order March 19, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001239-2001

BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 02, 2014

Appellant, Admiral Perry, appeals from the March 19, 2014 order 

denying his motion for DNA testing pursuant to Section 9543.1 of the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After careful 

review, we affirm.

In a prior published opinion, a panel of this Court summarized the 

relevant factual and procedural background of this case as follows.

On June 26, 1980, Kay Aisenstein left her home in 

the city of Philadelphia and did not return. At the 

time and place of Aisenstein’s disappearance, a 

witness, Richard Sussman, saw a young, light-

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* Retired Senior Judge assigned to the Superior Court.

1 Our Supreme Court has held that an order disposing of a motion for DNA 

testing under the PCRA is a final order that is immediately appealable. 

Commonwealth v. Scarborough, 64 A.3d 602, 609 (Pa. 2013).
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skinned, black male speeding from an alleyway in a 

1975 Chevrolet Malibu with its lights off. Richard 

Sussman and his father, Charles Sussman, were 

interviewed by police that night and a police sketch 

artist produced a composite sketch based upon a 

description of the driver. Richard Sussman was 

shown mug books, but was unable to make an 

identification at that time. The next morning, 

Aisenstein’s body was found in Delaware County, 

beaten, strangled and raped. On June 28, 1980, the 

Chevrolet Malibu was located in Philadelphia. 

Samples of what appeared to be blood were collected 

from the car. These samples were analyzed by a 

crime lab in June or July of 1980, and then 

repackaged for storage. No further progress was 

made in the investigation until 1992.

In 1992, Richard Sussman was shown a 

photographic array, and he identified Appellant as 

the man he saw driving from the alleyway in June of 

1980. In 1994, police obtained a search warrant to 

withdraw a blood sample from Appellant. In 1995, 

forensic DNA technology unavailable in 1980 enabled 

police to test the preserved blood evidence taken 

from the Chevrolet Malibu. The testing determined 

that the blood on the items taken from the vehicle 

came from two different people: the first was 

identified as Aisenstein, and the second was 

identified as Appellant. N.T., 9/24/2003, at 75–76.

At trial, the Commonwealth built its case 

largely on the 1992 photographic identification of 

Appellant by Richard Sussman, similarities between 

the composite sketch prepared by the police sketch 

artist and a 1980 photograph of Appellant, and the 

DNA evidence. On September 25, 2003, Appellant 

was convicted of first-degree murder, kidnapping, 

involuntary deviate sexual intercourse, and rape in 

connection with the death of Aisenstein. On 

September 30, 2003, Appellant was sentenced to life 

in prison without parole on the murder charge, and 

an aggregate sentence of thirty to sixty years’ 

imprisonment on the remaining convictions, to run 

consecutive to the sentence Appellant was already 
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serving. Appellant filed timely post-sentence 

motions, which were denied. He filed a timely 

appeal, and this Court affirmed the judgment of 

sentence on June 23, 2005. On December 29, 2005, 

our Supreme Court denied Appellant’s petition for 

allowance of appeal.

On February 1, 2006, Appellant filed a timely, 

pro se, PCRA petition and was appointed counsel. 

PCRA counsel filed a [no-merit] letter [pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988), Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) (en banc), and their progeny] 

seeking to withdraw his appearance. Counsel was 

permitted to withdraw and on July 19, 2007, the 

PCRA court denied Appellant’s petition without a 

hearing.

Commonwealth v. Perry, 959 A.2d 932, 934 (Pa. Super. 2008) (footnotes 

omitted). On September 15, 2008, this Court affirmed the PCRA court’s 

order dismissing Appellant’s first PCRA petition. Id. at 939. Relevant to the 

instant appeal, this Court concluded that under our Supreme Court’s decision 

in Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006), Appellant was 

not eligible for DNA testing under the PCRA because “the technology existed 

at the time of his trial, the verdict was rendered after January 1, 1995, and 

the court never refused funds for the testing.” Perry, supra at 938-939, 

quoting Williams, supra at 1063. Appellant did not file a petition for 

allowance of appeal in our Supreme Court.

On March 25, 2013, Appellant filed a ”Petition for Post Conviction DNA 

Testing Pursuant to 42 Pa. C.S.A. § 9543.1.” The PCRA court appointed 

counsel. The Commonwealth filed its answer on December 5, 2013. On 
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February 19, 2014, the PCRA court entered an order notifying Appellant of 

its intent to dismiss Appellant’s DNA motion without a hearing pursuant to 

Pennsylvania Rule of Criminal Procedure 907. Appellant filed a pro se

response on March 7, 2014, although he was still represented by counsel. 

On March 19, 2014, the PCRA court entered its final order dismissing 

Appellant’s DNA motion. On April 16, 2014, Appellant filed a timely notice of 

appeal.2

On appeal, Appellant presents one issue for our review.

I. Was the [PCRA] court in error for dismissing 

[Appellant]’s amended petition for [PCRA] relief 

regarding after-discovered evidence and a request 

that said evidence be made available for DNA 

testing?

Appellant’s Brief at 4.

“Initially, we note that, when examining the propriety of an order 

resolving a request for DNA testing, we employ the PCRA standard of 

review.” Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 

2013) (citations omitted). “In reviewing the denial of PCRA relief, we 

examine whether the PCRA court’s determination is supported by the record 

and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014) (internal quotation marks and citation omitted). “The scope of review 

is limited to the findings of the PCRA court and the evidence of record, 

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2 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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viewed in the light most favorable to the prevailing party at the trial level.” 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). 

“It is well-settled that a PCRA court’s credibility determinations are binding 

upon an appellate court so long as they are supported by the record.” 

Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation 

omitted). However, this Court reviews the PCRA court’s legal conclusions de 

novo. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) 

(citation omitted). We further note that “[m]otions for post-conviction DNA 

tests [pursuant to Section 9543.1], while considered post-conviction 

petitions under the PCRA, are clearly separate and distinct from claims 

pursuant to other sections of the PCRA.” Perry, supra at 938.

In the case sub judice, Appellant avers that the PCRA erred in denying 

his DNA motion because Appellant reviewed a letter from Genetic Consultant 

Services (GCS) dated June 1, 2002 which “suggest[ed] ... that several of the 

samples as to the DNA evidence were inconclusive.” Appellant’s Brief at 11. 

The Commonwealth counters that Appellant’s DNA petition is barred by the 

law of the case doctrine. Commonwealth’s Brief at 10.

This Court has previously described the law of the case doctrine as 

follows.

The law of the case doctrine refers to a 

family of rules which embody the concept that 

a court involved in the later phases of a 

litigated matter should not reopen questions 

decided by another judge of that same court or 

by a higher court in the earlier phases of the 
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matter .... The various rules which make up 

the law of the case doctrine serve not only to 

promote the goal of judicial economy ... but 

also operate (1) to protect the settled 

expectations of the parties; (2) to insure 

uniformity of decisions; (3) to maintain 

consistency during the course of a single case; 

(4) to effectuate the proper and streamlined 

administration of justice; and (5) to bring 

litigation to an end.

Commonwealth v. McCandless, 880 A.2d 1262, 

1267 (Pa. Super. 2005), appeal dismissed as 

improvidently granted, 593 Pa. 657, 933 A.2d 650 

(2007) (quoting Commonwealth v. Starr, 541 Pa. 

564, 664 A.2d 1326, 1331 (1995)). Thus, under the 

doctrine of the law of the case,

when an appellate court has considered and 

decided a question submitted to it upon 

appeal, it will not, upon a subsequent appeal 

on another phase of the case, reverse its 

previous ruling even though convinced it was 

erroneous. This rule has been adopted and 

frequently applied in our own State. It is not, 

however, inflexible. It does not have the 

finality of the doctrine of res judicata. “The 

prior ruling may have been followed as the law 

of the case but there is a difference between 

such adherence and res judicata; one directs 

discretion, and the other supercedes it and

compels judgment. In other words, in one it is 

a question of power, in the other of 

submission.” The rule of the “law of the case” 

is one largely of convenience and public policy, 

both of which are served by stability in judicial 

decisions, and it must be accommodated to the 

needs of justice by the discriminating exercise 

of judicial power.

[McCandless, supra at 1268.]

Gacobano, supra at 419-420.
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In Gacobano, the defendant filed his first DNA motion under the PCRA 

in 2006, which the PCRA court denied on statutory grounds. Id. at 418. On 

appeal, this Court affirmed in an unpublished memorandum, concluding that, 

just as it did in our 2008 opinion in this case, that Gacobano could not meet 

any of the three preliminary conditions for DNA testing. Id. Also similar to 

this case, the Gacobano Court concluded that Gacobano “could not satisfy 

any of those mandates in that his jury verdict was rendered after January 1, 

1995, DNA testing existed when Appellant was tried, and Appellant never 

was refused funding for such a test.” Id. Gacobano then filed another 

petition seeking to vacate his judgment of sentence on the grounds that he 

was denied DNA testing. Id. Construing this petition as a DNA motion 

under Section 9543.1, this Court concluded that the law of the case doctrine 

barred consideration of this new DNA motion. Specifically, this Court noted 

that “[w]e ha[d] previously ruled that Appellant is not entitled to DNA 

testing under the statute authorizing such analysis. That ruling applied the 

pertinent statutory language and was not clearly erroneous.” Id. at 420. 

Accordingly, this Court affirmed the PCRA court’s order on this basis. Id.

In the case sub judice, this Court previously concluded in 2008 that 

Appellant was statutorily ineligible for DNA testing under Section 9543.1 due 

to his inability to show that any of the three preliminary requirements were 

satisfied. See Perry, supra at 938-939. Like in Gacobano, a prior panel 

of this Court applied the requirements of Section 9543.1, and Appellant has 
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not shown that its previous legal conclusion was “clearly erroneous.” 

Gacobano, supra. Instantly, Appellant argues that he only discovered in 

2013 that GCS’s 2002 letter stated that “several of the samples as to the 

DNA evidence were inconclusive ... [and h]is attorney chose not to utilize this 

report in [Appellant]’s defense.” Appellant’s Brief at 11. This does not alter 

Appellant’s eligibility under Section 9543.1, as it does not change Appellant’s 

failure to show any of the preliminary requirements under the statute.3 As a 

result, Appellant’s arguments as to his DNA motion are barred by the law of 

the case doctrine. See Gacobano, supra at 419-420.

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3 Appellant does not specifically couch this line of argument in his brief as an 

independent ineffective assistance of counsel claim, which would be subject 

to the PCRA and its time-bar. See Appellant’s Brief at 11. Therefore, we do 

not address it as such.

We also note that in his original motion, Appellant alleged an 

additional claim for relief under Section 9543(a) of the PCRA alleging 

ineffective assistance of counsel, independent of his request for relief under 

Section 9543.1. Appellant’s Motion for DNA Testing, 3/25/13, at 2-5. Based 

upon our review of the certified record, it appears that the PCRA court 

addressed all of these claims under both sections of the statute in its Rule 

907 notice and in its Rule 1925(a) opinion. Cf. Commonwealth v. Brooks, 

875 A.2d 1141, 1148 (Pa. Super. 2005) (stating, “[w]e have held that a 

PCRA petition cannot be used to make a motion for DNA analysis ... and the 

reverse is surely true as well[]”). However, on appeal, Appellant only 

argues that the PCRA court erred when it denied his claim for DNA testing 

under Section 9543.1. See Appellant’s Brief at 10-11; Appellant’s Rule 

1925(b) Statement, 6/9/14, at 1 (stating the sole issue on appeal as “[w]as 

the [PCRA c]ourt in error for dismissing [Appellant]’s [a]mended [p]etition 

for [PCRA r]elief regarding after-discovered evidence and a request that said 

evidence be made available for DNA testing[]”). Therefore, said claim is not 

before us in the instant appeal.
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Based on the foregoing, we conclude the PCRA court properly denied 

Appellant’s motion for DNA testing under Section 9543.1. Accordingly, the 

PCRA court’s March 19, 2014 order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2014